Zemlicka v. West Jordan City
438 P.3d 1036
Utah Ct. App.2019Background
- On March 10, 2014, Norma Zemlicka was injured when her car hit an unlit dead-end street in West Jordan City; she filed a negligence suit on February 18, 2016 after complying with UGIA pre-suit notice.
- A prior version of Utah Code § 63G-7-601(2) required that "at the time the action is filed, the plaintiff shall file an undertaking in a sum fixed by the court that is . . . not less than $300."
- The statute, as written then, required the court to have fixed the undertaking amount before the complaint was filed, which is practically impossible because courts typically fix amounts only after an action is filed and a judge is assigned.
- On March 14, 2016 the district court notified Zemlicka she must post a $300 undertaking; she filed a $300 bond the same day.
- West Jordan moved to dismiss on October 6, 2016, arguing Zemlicka failed to file the undertaking at the time of filing the complaint; the district court granted the motion and dismissed.
- The Utah Legislature later amended § 601 to require a $300 undertaking at filing (unless otherwise ordered), avoiding the logistical problem presented by the prior language.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prior § 63G-7-601(2) required the plaintiff to file an undertaking at the exact moment the complaint was filed | Zemlicka: statute requires the court first fix the amount then plaintiff file the undertaking; filing after court fixed amount satisfies statute | West Jordan: statute effectively creates a $300 default that must be filed with complaint; plaintiff failed to strictly comply | Court: statute unambiguous in requiring amount fixed by court, but because that fixing necessarily occurs after complaint filing, plaintiff must file undertaking promptly after court fixes amount; Zemlicka complied when she filed bond the same day court notified her |
Key Cases Cited
- Harvey v. Cedar Hills City, 227 P.3d 256 (Utah 2010) (statutory clarity controls resort to legislative history)
- Bilanzich v. Lonetti, 160 P.3d 1041 (Utah 2007) (statutory interpretation is reviewed for correctness)
- Marziale v. Spanish Fork City, 423 P.3d 1145 (Utah 2018) (noting requirement to include an undertaking at filing)
- Hansen v. Salt Lake County, 794 P.2d 838 (Utah 1990) (court initially fixes undertaking amount)
- Kiesel v. District Court, 84 P.2d 782 (Utah 1938) ("at the time of filing" can mean contemporaneously with filing)